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July 31, 2013

In Defense of the Patent System: How the Mainstream Media's Representation of it is "Broken"

The
mainstream media continues its attack on the patent system. This problem has become significant, because
the average American does not appear to understand the purpose (and benefits)
of the patent system. With all of the
misinformation being reported, it is no wonder that lay people have the
perception that the patent system is "broken." This blog has reported in the past about NPR's
criticisms of the patent system, which have occurred on such shows as "This
American Life" and podcasts as "Planet Money" (see "When NPR Podcasters Hit the Patent System"). We pointed out that one of the downsides of
these various reports was that the NPR hosts and reporters did not appear to
understand the patent system. But, on
the plus side (if it can be considered as such), these reporters did not hide
the fact that they did not understand the system, and they certainly did not
profess to be patent law experts.

A
different tone has been taken in an article recently published on Wired.com by
Patrick Hall entitled "Patent Law Broken, Abused to Stifle Innovation." Mr. Hall's article is written from the
perspective of an "expert" in the field, beginning with the axiomatic
proposition that the system is not only broken, but that its abuse is stifling
innovation. However, a review of this
article with even a minimal understanding of the patent system suggests that not
only is Mr. Hall not actually an expert on the subject, but that he may even
lack an understanding of even the most basic tenets of U.S. patent law. This would not be so disconcerting but for
the fact that his piece was published on a site that has a wide-reaching
readership, and there was no indication or suggestion provided that the opinions
expressed were just that -- opinions by someone who appears to believe that software
patents are "bad."

To
be fair, the focus of Mr. Hall's article is almost entirely on software patents
(even though he does appear to suggest that mechanical patents, such as those
that would cover automobiles, are absurd). This software focus on its own might not be of much interest to the
readership of this blog. However, the
provided "recommendations," and the criticisms provided as a whole,
are not limited to software patents, and therefore could impact pharmaceutical,
chemical, and biotech patents. Moreover,
the more public bashing that software and business-method patents take can only
result in a detriment to the patent system as a whole, especially when this is
the only exposure to the system that most Americans ever receive.

Mr.
Hall's piece begins with the assumption that the patent system is broken. However, any support for this proposition was
anecdotal at best. For example, the
article complained that Apple received a patent for its glass staircase in
2003. No explanation was given as to why
such a patent was undeserved, but the clear implication was that there is a
problem if companies are receiving patents on staircases. No patent numbers were provided, so we are
left assuming that the article was referring to Design Patent No.
D478,999. If Mr. Hall understood the
difference between utility and design patents, it was not included in his
article. As explained on the Patent Office
website, "[a] design patent protects only the appearance of the article
and not structural or utilitarian features." So, "a 'utility patent' protects the way
an article is used and works (35 U.S.C. 101), while a 'design patent' protects
the way an article looks (35 U.S.C. 171)." Id. Therefore, instead of the
absurd proposition that Apple has patented the staircase, as the article
suggests, Apple has instead simply protected the way its staircases look.

Mr.
Hall's article also cited three "absurd" patents as evidence of a
broken system: the motorized ice cream cone, the banana suitcase, and the gas
grabber (we are not supposed to ask about this last one). There is apparently support for the
proposition that these patents are absurd -- they were all featured on the "Patently
Absurd" website. But, Mr. Hall's article did not explain why
he thought these patents were absurd (other than the fact that absurdity must
be self-evident). Looking at the first
example, the motorized ice cream cone, it would appear at first glance that this
is a patent to a novelty product. But, is
the article suggesting that novelty products are undeserving of patent
protection? And a simple web search reveals
that at least someone was marketing such a device at some point (it was even
featured on Katie Lee and Hoda, a video for which can be found with the same
web search). Is Mr. Hall suggesting a
new category of inventions that are not patent eligible? But fear not, if you want to create your own
motorized ice cream cone, you can do so without threat of suit from U.S. Patent
No. 5,971,829 -- that patent expired for failure to pay a maintenance fee around
2011. Of course, this highlights one of
the points that Mr. Hall's article fails to address -- obtaining and maintaining
a patent can be an expensive proposition, and that if a patent is truly "absurd,"
it is unlikely someone is going through the cost and effort of obtaining or
enforcing one.

As
one of the most puzzling examples of how the "current" patent system
is broken, Mr. Hall's article cites U.S. Patent No. 549,160, which issued in
1895 to George Selden. This patent
claims a "road-locomotive" with "a liquid hydrocarbon gas-engine
of the compression type," or as the article puts it, an automobile. As with the other examples, the article does
not explain why a car should be underserving of patent protection. But all is well, according to article,
because Henry Ford allegedly successfully challenged this "absurd"
patent in 1911. Except that isn't quite
what happened. A simple Internet search
that digs a little deeper than the Wikipedia page for Selden's patent reveals
that his patent was never found to be invalid. It is true that his patent was surrounded by controversy, but that was
because his application was filed in 1879. Mr. Selden was apparently able to keep his application pending for close
to 20 years, until others had gotten into the business. It appears that Mr. Selden was using a "submarine"
patent more than half a century before Jerome Lemelson. Mr. Selden's downfall occurred not because
his patent was determined to be invalid, but rather the type of combustion
engines that automobile manufacturers were using at the turn of the century
were different than those use in 1879. Therefore, Mr. Ford successfully appealed a finding of infringement. Of course, such a "submarine"
patent is not feasible anymore, both because almost every application is published
after filing, and more importantly, the expiration date of patents are now limited
by the filing date. Therefore, under the
patent system that actually exists today, Mr. Selden would have only have been
able to assert his patent for a couple of years. Not surprisingly, these subtleties are missing from Mr. Hall's article.

Mr.
Hall's article culminates with "seven simple changes" to fix the
patent system. However, the article
makes statements and assumptions about the patent system that are incorrect,
but a layperson reading the article would have no idea that this is the case. The starting point for these seven "fixes"
were similar proposals for software patents offered by the "Defend
Innovation" initiative of the Electronic Frontier Foundation ("the
EFF"). Without taking a position on
the EFF's proposals, we note that Mr. Hall's article's exposition on these
fixes is not limited to software patents. In fact, it is in the article's expounding of these proposals that the most
confusion would be introduced for those unfamiliar with the patent system. For example, the EFF has suggested that
software patents be required to provide an example of the software code for
each claim. Patents already have a
requirement that the claims be sufficiently enabled and described, in order to
satisfy 35 U.S.C. § 112. Mr. Hall's
article, however, provides no indication that such a requirement exists. Instead, the following question is posed: "[d]o
I deserve a patent for a hovering skateboard that I cannot create?" The article gets the answer right ("Absolutely
not"), but posing the question in the first place suggests to the reader
that there is currently no enablement requirement. Such a reader is therefore left with the
impression that the Patent Office is issuing patents on "ideas" that the inventor has no idea how to implement.

As
another example, the EFF has suggested that all patents and licenses be made public. In fact, such a proposal to require the
recordation of real parties-in-interest has been included in many of the legislative
proposals that have been recently proposed (see "Congress Continues Efforts to "Reform" U.S. Patent Law"). However, Mr. Hall's article suggests that this proposal is necessary because,
without it, no one would know that a particular patent existed. "Otherwise," the article asks, "how
can innovators know if they are infringing on a patent." Such reporting leaves the lay-reader with the
impression that issued patents (or even published applications) are not
publically available. Not only is this
incorrect, it is counter to the purpose behind the patent system -- to provide a
period of exclusivity in exchange for the disclosure of an invention.

Many
of the other proposals are simply unworkable or impractical. For example, the EFF had suggested a patent
term for software patents no longer than five years from the date that the
application was filed. It is unclear how
they derived that the ideal term for software patents is five years, but at
least the EFF recognized that this proposal might cause a problem with
international treaties. Mr. Hall's
article ignored this complication, and instead expanded the original proposal
by suggesting that "[p]atent lengths should reflect the speed of
innovation within individual industries." No guidance is provided, however, as to how this "speed of
innovation" is to be calculated. In
fact, if his proposal was codified, then there is no reason that the converse should
not be applied -- that industries with slower innovation speeds be given patent
terms longer than the current twenty years from filing date. More importantly, Mr. Hall's article does not
take into account the logistical nightmare of how to categorize into which
industry a particular patent falls -- and who would be responsible for that
determination.

The
final proposal in the article is perhaps the most ironic. The article reiterates the EFF's request that
Congress hold hearings to determine whether software patents are beneficial to
society. However, the starting point of
this article already assumed this conclusion -- that the system is broken, and
is being abused to stifle innovation. But if
this is true, why should Congress waste its time with such a
study? Maybe the article's underlying
premise is not as strong as it would lead the readers to believe. The article refers to scholarly studies that
apparently have concluded that patents do not, in fact, protect economically
useful inventions. However, no such study
is cited or even mentioned. Making such
statements without providing support is irresponsible journalism.

Mr.
Hall's article concludes with the statement that "[o]nly countries with
enlightened legal institutions can sustain long-term economic growth, facilitate
innovation, and benefit from the genius of resourceful creators." On this point, the article is probably
correct. Nevertheless, this article
provides mostly unsupported statements as fact, which leads the reader to
assume that our country does not have such a legal institution. There is nothing wrong with Mr. Hall having
such an opinion, or even his putting his opinion on the internet. However, when a media outlet such as
Wired.com posts such an article, without disclaimer or qualification, it
invites the reader to assume that the piece represents reality. It is no wonder that public outrage over the
patent system is mounting. Instead, the
mainstream media needs to apply a balanced approached to the issues, present
the merits and weaknesses of both sides, and allow the readers to reach an
informed conclusion for themselves. Of
course, this is probably too much to ask.

Comments

Andrew,

A great expose on the nonsense of the "anti-commons" being fostered by the media and these so-called "experts." Hall epitomizes those "talking heads" whose credentials to speak accurately and fairly on the subject are suspect. The debate on the value of our patent system has regrettably degenerated into a PR campaign launched by those who simply have agendas against patents, and have no real understanding or expertise about the subject. Unfortunately, with the information explosion, the general public will have trouble separating the wheat from the "chaff" that these anti-patent folk spew. As Joe Allen has astutely noted, and as you've done in this piece, these so-called "experts" need to be pressed (and pressed hard) as to their evidence and factual support for what they say. And continue to carry on the good fight for balance on this subject.

I enjoy the fact that this piece appears in this forum. The patent system is indeed under attack (from multiple angles), and it is comforting to see that a 'divide and conquer' approach will not work when those in distinct art areas do not adopt a NIMBY viewpoint.

But aside from pressing for the facts (and highlighting bias) in a rear-guard, post assault manner, is there a better way of combatting those who personally pursue such anti-patent agendas?

It is good that this is raised here. It does appear that (i) patents and patent law are under attack, (ii) the courts (especially the supreme court) are in disarray and (iii) congress is useless and does not understand the situation. Obviously, there will be people, including members of the patent bar, who disagree with this assessment.

To my knowledge, there is no forum where people who have similar misgivings can get together and attempt to raise a counterattack against the nonsense. This blog is a place where comments like these are treated with respect and without resort to personal attack. Some of the other patent blogs out there rapidly descend into the personal and vicious, which is not helpful in the slightest.

It is time for people who share the feeling that something is seriously wrong to get together and institute a forum where their opinions are articulated and defended. That concern is grounded in the belief that, on balance, patents contribute to our capacity to generate wealth, thereby defending our standard of living, which has been stagnant for years.

As professionals, patent bar members arguably bear some responsibility for trying to make things better because of the distress that our institutions appear to be suffering from. Most of our political institutions, including the courts, appear to be floundering, if not in outright failure mode when it comes to patents (and a fair number of other things as well). If there is any way to provide fair, unbiased, reasonable guidance, the time is ripe for that. Fixing patent messes won't solve everything, but it should help. At least, that's a reasonable take on the fact that the founding fathers even mentioned intellectual property in the constitution at all. Unless there is unbiased economic data showing that patents, on balance, hurt the economy more than they help, patents are in dire need of a much better defense than they now get. One might have thought that the PTO would rise to the occasion, but unfortunately and inexplicably those folks are mildly to moderately on the other, i.e., wrong, side of this issue.

Andrew: "However, when a media outlet such as Wired.com posts such an article, without disclaimer or qualification, it invites the reader to assume that the piece represents reality."

What about when this blog posts articles about the terrible things that will happen if people aren't allowed to patent new methods of thinking about the results of old diagnostic tests? You know, like it did endlessly during the run-up to the Prometheus v. Mayo decision? Did those articles "invite the reader to assume that the pieces represented reality"? They didn't paint a very accurate picture of reality, nor were the claims at issue in Prometheus discussed very candidly. The same could be said of the claims that Myriad is pursuing, although occasionally there appears to be at least some bona fide attempt at circumspection there.

Skeptical: "is there a better way of combatting those who personally pursue such anti-patent agendas?"

I would suggest finding common ground and working to improve the system, which certainly has its flaws, instead of reflexively attacking anyone concerned about those flaws as "naive" or "missing the bigger picture." This blog isn't the worst (by far) but it certainly appears biased towards protecting the interests of stakeholders in the industry.

EG: "these so-called "experts" need to be pressed (and pressed hard) as to their evidence and factual support"

Of course they do. That's true on all sides of every debate. It's also very important and useful for the public to be informed of any financial interests that the self-described "experts" might have in their opinions. For example, a PBS or NPR "expert" who defends increased patent protection for biotech companies should not hide the fact that he or she is a partner in a law firm whose clients would benefit directly from the proposed positions.

Ah yes, Joe, the "you take the position out of self interest" canard. A little cheeky coming from someone hiding behind a pseudonym, don't you think? As it is, when PBS or NPR or any other media outlet quotes me my affiliation with the firm, as well as the fact that I am a biotech patent lawyer, is front and center.

If my own economic self interest was my motivation I would be standing on the sidelines cheering Mayo and AMP; every time the Congress, the President or the Supreme Court makes patent law uncertain the value of my services increases.

And as for Mayo, if you think Justice Breyer agrees that this was a method for thought control re-read the decision. He said as much in his Labcorp dissent so he knows how to make the argument. None of that was in the Mayo decision, which was grounded in the Benson/Flook/Bilski jurisprudence having much more to do with lack of novelty.

""[d]o I deserve a patent for a hovering skateboard that I cannot create?" The article gets the answer right ("Absolutely not"), but posing the question in the first place suggests to the reader that there is currently no enablement requirement. "

I thought that as well, but then I figured out that hovering skateboards are in fact enabled, and were in fact features on Gizmodo itself.

So it's really just a matter of him proposing whether HE in specific should be able to patent something that may be enabled to other people but which he himself is not enabled to make due to his ignorance. The question then is whether or not people wanking in the softiewaftie areas could actually implement their software themselves, (which many of them cannot if recent infringment cases are to be believed) should be able to patent something they cannot create just because some other (perhaps imaginary legally ficticious POSITA) person is able to implement the software?

I think that is actually what his question is about, though you are right it might mislead some people. Though the Gizmodo readership probably overlaps with the WIRED readership quite a bit.

Kevin: "when PBS or NPR or any other media outlet quotes me my affiliation with the firm, as well as the fact that I am a biotech patent lawyer, is front and center."

Sure, but what do you do at the firm? Do you spend all your time re-examining junk patents on behalf of public interest groups? It's one thing, say, for someone to get on TV or write a Wall Street Journal editorial and say he's an expert and professional consultant on "school security". But if the editorial is about putting guns in schools, it's probably a good idea to disclose the fact that the expert's main clients are the NRA and Colt (just an example, not an attempt to make any kind of direct analogy).

"If my own economic self interest was my motivation I would be standing on the sidelines cheering Mayo and AMP; every time the Congress, the President or the Supreme Court makes patent law uncertain the value of my services increases."

Many of us have been in the business for a long time, Kevin. There's always been uncertainty, there's always change. Which entities you "cheer for" in "big" patent cases is very unlikely to change that aspect of the profession. The issue really isn't your (or anyone else's) "self-interest" in being a television or Wall Street journal pundit with a massive audience of naive viewers or readers. It's about the potential conflict between your unvarnished "expert" opinion and the interests of the clients you represent.

"as for Mayo, if you think Justice Breyer agrees that this was a method for thought control re-read the decision."

That's not necessary. I'm quite familiar with the case. Here's a passge from the summary: "In telling a doctor to measure metabolite levels and to **consider** the resulting measurements in light of the correlations they describe, they tie up his subsequent treatment decision".

Consider = "think about". I think that's clear enough. And there's plenty more where that came from. My comment, by the way, was not about the decision itself but about the run-up to the decision where various facts about the case (e.g., Prometheus' expert testifying that the claims were infringed by someone who looked at old data and thought about the correlation but did nothing else) and some obvious troubling implications of a Prometheus victory were routinely shunted aside in favor of hyperbole about "damage to the industry", children dying, etc.

I worry less about what the public thinks about our patent system, than I am what some members of the legal and otherwise professional community think.

That's because the patent issue is largely irrelevant to the public. Whatever the public's stance is, even assuming this could be extrapolated from polls, it cannot affect the system in a substantial way. I think in political science they call it a "soft" issue; or soft opposition to the issue.

However, it's when economists and legal scholars begin to disseminate falsehoods, or under-analyzed opinions, that I start to worry. Recently, the honorable Judge Posner debated with Professor Epstein about patents. And while I very much admire Judge Posner, and disagree with Epstein on what day of the week it is, I found the debate enlightening in this sense: Posner's views were outdated, traditionalist and displayed a lack of working knowledge of the patent system. Yet because Judge Posner is such a towering figure in the legal community, his opinions may be very influential. See his blog about this:http://www.becker-posner-blog.com/2013/07/patent-trollsposner.html

*Having said that, I found his proposal to use neutral expert witnesses interesting and perhaps appropriate.

Thanks for the information on the hoverboard. I have learned several new technology areas preparing this post (unfortunately, I did ask what the gas grabber claimed). Of course, as you surmised, I was focused on the “that I cannot create” part of the sentence, but it’s nice to know that I might be able to get a hoverboard soon. Thanks again.

Joe the Plumber: "Do you spend all your time re-examining junk patents on behalf of public interest groups?"

And are public interest attorneys less biased on this issue?
Moreover, define a "junk" patent. If it's junk in a sense that it's not novel, or is obvious, and therefore shouldn't have been granted, then PTO is simply wrong and the issue may get resolved through legal channels. But such an outcome does not call for reform. PTO makes mistakes, as do courts and judges. No perfect or flawless system could be designed as to remedy this particular issue.

If it's junk in a sense that it's trivial, then as the blog post pointed out, it won't be a major stumbling block in the system.

From gathering the reading at Patently-O, and observing the thinly veiled 'theories' so similar in thought pattern and based on insistence rather than reason, it appears that PatentDocs has become infested (infected) with the schizophrenic rantings of Malcolm Mooney.